Election dispute now set for mediation, another appeal

June 17, 2014

Former Cape Coral Mayor John Sullivan and his supporters are not giving up hope of winning their appeal in the long-running saga of the Nov. 5, 2013 mayoral election.

Or at least recouping some of their potential losses.

Sullivan is hoping a new appellate attorney, and perhaps a desire for Mayor Marni Sawicki to "put this behind her" in mediation, will finally bring a close to the seven-month controversy.

To that end, Charles C. Jones II, a partner at Jones, Haber & Rollings who has overseen the case since the plaintiffs' former attorney withdrew, had the appeal reinstated. Leigh Fischer, the original attorney, was released from the case in April due to a potential conflict of interest.

Sullivan and his team will now retain a formal appeals lawyer, who could be announced as early as the end of the week, according to co-plaintiff David Carr.

Whomever is hired, the first task will be to represent Sullivan and the co-plaintiffs at a mediation hearing with the defendants on July 7 in hope of reaching a compromise regarding attorney's fees which, according to council member and co-defendant Rana Erbrick, have reached the $200,000 mark.

As early as May 23, Sawicki announced on her Facebook page that the fees would stand, "it's just a matter of how much."

Erbrick was asked if she and Sawicki were in "never say never" mode.

"I'm always in never-say-never mode. You have to be. We're going to sit in mediation and see if a reasonable and fair compromise can be attained. If not, we're going to take our chances again with a judge," Erbrick said.

Carr said if Sawicki truly wants to get this behind her, as she has said recently, she needs to come to the table with a viable solution.

"She said she wants to get this behind her. But to say one thing and act another is what's going on," Carr said. "We've come up with offers for them. They haven't accepted them."

Sullivan said it's hard to say what will happen, and that he was reluctant to say anything that could hamper a potential deal.

"It's like going into court. You don't want to say much because you don't want to blow the case up before the judge," Sullivan said. "The real progress is that they agreed to mediate it."

If mediation fails, the case goes to court once again before Judge Alane Laboda on July 20.

"We don't know what Laboda is going to say, but we're trying to get in front of it. I'm trying to treat this as a court case, which it is," Sullivan said.

Sullivan lost to Sawicki in the mayoral race by 121 votes, after which he and a handful of supporters sued, alleging, among other things, that the city's canvassing board was illegally constructed, that a precinct had closed before the 7 p.m. scheduled closing time, that some voted illegally, and that early voting results were too heavily in Sawicki's favor, since Sullivan took the most votes in Election Day and mail-in ballots.

Laboda heard the case in February and called the lawsuit "meritless." She ordered the plaintiffs to pay the defendants' court costs and legal fees.

Sullivan then asked for reconsideration of the ruling in favor of the defendants, which was denied, followed by a litany of other appeals that have also been dismissed.